R (on the application of AAA (Syria) and others) v Secretary of State for the Home Department

This appeal concerned the lawfulness of the United Kingdom’s policy of designating certain asylum claims as inadmissible in the United Kingdom and removing claimants to Rwanda under paragraphs 345A–345D of the Immigration Rules and the Migration and Economic Development Partnership (MEDP). The central legal principles decided were the application of the non-refoulement obligation (in particular article 33 of the 1951 Refugee Convention and article 3 ECHR) to removals via a safe third country, the standard of judicial review and assessment of diplomatic assurances, and the domestic effect (or otherwise) of retained EU law derived from the Procedures Directive.

The Court held that the Divisional Court had erred in its treatment of the evidence relevant to the risk of refoulement, especially by failing to give proper weight to UNHCR's expert evidence and by treating the executive’s reliance on Rwandan assurances as decisive unless compelling contrary evidence was shown. On the evidence before it the Court of Appeal was entitled to conclude, and this court agreed, that there were substantial grounds for believing that removals to Rwanda would expose asylum seekers to a real risk of ill-treatment by reason of refoulement because of systemic deficiencies in Rwanda’s asylum procedures, past instances of refoulement (including under an earlier Israel–Rwanda arrangement), and the absence at the relevant time of effective safeguards in practice.

The court also ruled that provisions of the Procedures Directive relied upon by a cross-appellant did not remain part of domestic law after enactment of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020: the 2020 Act removed EU-derived rights so far as they were inconsistent with or capable of affecting the Immigration Acts, and thus articles 25 and 27 of the Procedures Directive no longer had domestic effect as retained EU law for the purposes of this scheme.

This is an appeal from the Court of Appeal ([2023] EWCA Civ 745) following an earlier Divisional Court decision ([2022] EWHC 3230 (Admin)). The Secretary of State appealed against the Court of Appeal’s conclusion that the Rwanda policy (implemented under paragraphs 345A–345D of the Immigration Rules and supported by the MEDP memorandum and notes) was unlawful because removals to Rwanda would risk refoulement contrary to the Refugee Convention and article 3 ECHR. Several claimants cross-appealed on retained EU law grounds under the Procedures Directive.

Factual and procedural background:

• The MEDP comprises an MOU and Notes Verbales under which Rwanda undertook to process relocated asylum claims in accordance with the Refugee Convention, to provide procedural guarantees and to limit removal of unsuccessful claimants to countries in which they have a right of residence.
• The Secretary of State had issued inadmissibility decisions and paragraph 17 certificates (Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004) certifying Rwanda as a place where life and liberty are not threatened and from which persons would not be sent elsewhere contrary to the Refugee Convention.
• A number of asylum claimants challenged those decisions, and UNHCR intervened with expert factual evidence about Rwanda’s asylum system and past practice including alleged refoulement and failures under an earlier Israel–Rwanda arrangement.

Issues framed by the court:

1. Whether the Divisional Court applied the correct test in assessing refoulement risk (whether the court must itself decide whether there were substantial grounds for believing there was a real risk of ill-treatment by reason of refoulement).
2. Whether the Court of Appeal was entitled to interfere with the Divisional Court’s conclusions on the evidence.
3. Whether, on the evidence, there were substantial grounds to believe that removals to Rwanda would expose asylum seekers to a real risk of ill-treatment by reason of refoulement.
4. Whether articles 25 and 27 of the Procedures Directive continued to have domestic effect as retained EU law after the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.

Court’s reasoning and conclusions:

• The court confirmed the correct Soering-based test: the court must itself assess whether substantial grounds exist for believing that removal would expose a person to a real risk of ill-treatment (including indirect refoulement), and this requires an up-to-date assessment of how the receiving country’s asylum procedures operate in practice.
• The Divisional Court erred in its approach to evidence by too readily deferring to the executive’s assessment and to Rwandan assurances, and by failing adequately to engage with UNHCR’s authoritative, largely uncontradicted evidence of systemic defects, prior instances of refoulement and Rwanda’s failure in the past to honour similar assurances (eg the Israel arrangement). The court emphasised authorities on the proper judicial approach to assurances (including Othman and Zabolotnyi) and the special weight to be given to UNHCR evidence in this field.
• On the evidence before the courts at the relevant time, there were substantial grounds for believing a real risk existed that asylum claims removed to Rwanda would not be determined properly and that genuine refugees could be indirectly or directly returned to countries where they would face persecution. The structural deficiencies, untested appeal mechanisms and past practices meant assurances and monitoring in the MEDP did not eliminate that risk at the material time.
• On retained EU law, the court concluded that the 2020 Act (section 1 and Schedule 1) operated to remove EU-derived rights that were inconsistent with or might affect the interpretation, application or operation of provisions made under the Immigration Acts; as a result articles 25 and 27 of the Procedures Directive did not remain enforceable as retained EU law to constrain the impugned policy.

Remedy and disposition: The Secretary of State’s appeal was dismissed on the ground that the policy was unlawful because of the real risk of refoulement; the cross-appeal asserting continued domestic effect of articles 25 and 27 of the Procedures Directive was also dismissed.

Appeal dismissed. The Supreme Court agreed with the Court of Appeal that the Divisional Court had erred in its evaluation of the evidence and in its treatment of UNHCR’s expert material and of the weight to be given to executive reliance on Rwandan assurances. On the evidence before the courts at the relevant time there were substantial grounds for believing that removals to Rwanda would expose asylum seekers to a real risk of ill-treatment by reason of refoulement, rendering the Secretary of State’s policy unlawful. The cross-appeal that articles 25 and 27 of the Procedures Directive remained part of domestic retained EU law was dismissed: the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 removed EU-derived rights so far as they were inconsistent with or capable of affecting provisions made under the Immigration Acts.

Divisional Court: R (AAA and others) v Secretary of State [2022] EWHC 3230 (Admin) (challenge partially allowed on procedural grounds; wider challenge rejected). Court of Appeal: [2023] EWCA Civ 745 (majority held policy unlawful on refoulement grounds; paragraph 17 certificates also wrongly issued). Supreme Court: appeal from the Court of Appeal allowed in part by dismissing the Secretary of State’s appeal (see [2023] UKSC 42).